DC Circuit Court Declines to Override Attorney-Client Privilege

On August 11, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in the case of United States ex rel. Barko v. Haliburton et al. The ruling vacated a previous set of rulings from the same court that had required a defendant, Kellogg Brown and Root, Inc. (KBR) to produce privileged files at the root of its internal investigation into allegations the company defrauded the federal government. Additionally, the court had ruled that attorney-client privilege did not cover certain summary reports KBR’s non-attorney investigators had prepared.

The effect of the circuit court reversing these opinions was threefold:

• The court held that KBR had not put its privileged files at issue by simply referencing the testimony in a footnote in the brief of its summary judgment because the company neither stated the investigation revealed no incidents of wrongdoing nor asked for specific types of relief due to the investigation’s results.
• The court ruled that assigning an in-house lawyer as a response to a deposition notice does not mean the company is compelled to produce privileged materials to prepare for the deposition.
• The court held the District Court was wrong in its ruling that some of the summary reports initially prepared by investigators from KBR were not privileged because some elements of the document clearly summarized statements made to an investigator who was essentially acting as an attorney. Instead, the circuit court clarified the privilege applies to summary reports prepared by an agent or attorney if the purpose was to put information received from the client in a usable form.

For more details about what this ruling means for the attorney-client privilege and how it could impact future federal actions, meet with an experienced Dallas attorney at Whistleblower Law for Managers.